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February 03, 2014

I really like watching CBS's "Hawaii 5-0," and I don't even think of it as a guilty pleasure. It's got the gorgeous backdrop of Oahu, good chemistry among the cast, and three Asian-American actors in co-starring roles, which is about three more than other shows that I watch put together. Of course, it's a comic book show, so any expectations about verisimilitude are at the viewer's own risk.

Still, last week's episode, Na hala a ka makua, was chock full of legal errors worthy of comment. The basic premise of the episode was that a two-time felon played by Michael Madsen has just been convicted of first-degree murder but escapes from custody and ends up taking our heroes, Steve McGarrett and Danny Williams, hostage.

First problem: the verdict of first-degree murder is announced in "United States District Court" in a case stylized as State of Hawaii v. Roy Parrish.

U.S. District Court is a federal court, for the trial of federal crimes. There is a federal crime of first-degree murder, but it is not a general murder statute; rather, it is first-degree murder in circumstances giving rise to federal jurisdiction, such as murdering federal employees or foreign officials. And it certainly wouldn't be the State of Hawaii against the defendant in such a case; it would be United States v. the defendant.

(There is a situation in which a criminal prosecution under state law could end up in federal court, but that is where the defendant is a federal officer who is being prosecuted for violating a state law while acting within the scope of federal employment. In such a situation, the federal officer can "remove" the case from state court to federal court in order to ensure a fair trial, on the assumption that the federal court will be less subject to local bias and the like. Thus, when the State of Idaho prosecuted FBI sharpshooter Lon Horiuchi for killing Randy Weaver's wife and baby son during the Ruby Ridge siege, Horiuchi was able to remove the case to federal court, even though the case remained one under state law.)

Now, if this were a federal courtroom matter, the security would be provided by court security officers and U.S. Marshals. Yet, after being pronounced guilty, the Madsen character was escorted out by local police and SWAT team officers. . . .

Fast forward to the end. The Madsen character has been killed, but not before the emergence of apparently incontrovertible evidence of his having been set-up for the most recent crime. His daughter is present in U.S. District Court (again), where the judge apologizes on behalf of the United States for the grievous wrong that was done to her father and announces that he has been posthumously pardoned.

Pardoned? That's an Article II (i.e., Presidential) power, and only as to federal crimes, not state crimes. So it wouldn't be a federal judge announcing a pardon; it would be the President, unless we're talking about a pardon of state crimes, in which case it would be the governor.

I'm being utterly nitpicky here, but at the same time, all of this would have been avoided by simply designating the courtroom a state court, not a federal court; and having the end scene be one with the governor's office rather than a court.

May 28, 2013

Really, this is such an awful story that there's very little to say about it:

A newborn Chinese baby was rescued from a toilet pipe after he was flushed away by his parents, state TV reports.

Chinese firefighters found the tiny boy lodged in a sewage pipe below a squat toilet in an apartment building in Jinhua, Zhejiang province. His placenta was still attached.

But I do have one observation. Compare the following two statements from the news story:

(1) "Despites the offers to adopt Baby No. 59, a doctor at the hospital said the boy would be handed over to social services if his parents do not claim him, Zhejiang News said."

(2) "Police are treating the case as an attempted homicide and are looking for the mother and anyone else involved in the incident."

Wha??? The parents are being investigated for attempted homicide, but they have first claim on the baby? I realize that, even here, terminating parental rights is quite difficult, but doesn't it seem like the appropriate thing to do would be to place the baby with child services right now regardless of what the parents want and waiting until the investigation is over before returning the baby (if at all)?

January 30, 2013

I'm sure that trial judges hate being second-guessed about their bail decisions, and with good reason. We can't realistically expect that judges will be 100% accurate in their assessments of whether particular defendants released on bail won't attempt to flee.

Still, I'm going to go out on a limb here (okay, not far at all) and suggest that the judge in the Logan Storm case really blew it. After being convicted of possession of child pornography, Storm was released on bail pending sentencing, but subject to electronic monitoring. Which he discarded today.

Now, imagine that you are the judge, trying to decide whether to grant bail to Storm. He's already been convicted, so the strongest argument one could otherwise make -- that an innocent person would be deprived of his liberty -- doesn't apply. True, he has the right to appeal so he might get that conviction overturned, but at this point, his legal status has changed from "innocent" to "guilty."

Given the typical two to three month period between conviction and sentencing, it's possible for minor crimes that one might receive a term of incarceration that would be shorter than what one would serve waiting to be sentenced. That might be an appropriate situation for bail, since credit for time served wouldn't exactly compensate for the extra amount of time one would spend in jail. With the likely sentencing range for child pornography, though, that seems not to be applicable here either.

But . . . here's the kicker: Storm previously fled the country:

In the days after the seizure of his computer and before he faced any charges in the case, he left the country, flying to London and eventually traveling to Ireland, France and Amsterdam, government filings state.

Now, his defense lawyers talked him into coming back, and hopefully they'll be able to talk him into turning himself in (again). But it's hard to see why a judge would release him on bail after conviction, knowing that he was skittish enough to flee before when there was just an investigation and not even any charges. Now that he's facing fairly certain prison time, it seems reasonable to conclude that he's an even greater flight risk than before.

January 22, 2013

I've got a new post up on the Huffington Post about the Parrish Bennette Jr. case here in Portland, and specifically, about how the defense lawyers kept the location of the victim's body secret for four months while representing their client.

November 09, 2012

Tonight's episode of NBC's "Grimm" relied heavily on an impending execution for narrative drama . . . . Of course, the show makes a big deal about its Portland setting (much appreciated!), with shout-outs to local institutions like Voodoo Donuts and the like. So whereas I wouldn't ordinarily nitpick too much about the finer legalities (okay, maybe I would), this is an instance where reality and fiction clash too much to ignore.

Specifically: (1) Governor Kitzhaber has issued a moratorium on all executions during his term in office, which lasts for two more years, so in fact, there would be no execution at all; and (2) the only two people on Oregon's death row to be executed since 1976 were "volunteers" -- meaning they waived their appeals.

I guess it's possible that the show takes place in the near future . . . .

November 01, 2012

In addition to the Presidential, congressional, state legislative, and mayoral races, my ballot this year included a bunch of voter-sponsored initiative measures. One of the more interesting ones is Measure 80, which would decriminalize marijuana under state law.

To start with, I'm quite sympathetic to the idea of decriminalization of drugs. I would go farther than marijuana and would be open to decriminalizing pretty much everything, although for the protection of society, if not just children, I'd put some limits on how and where you can buy and use the really dangerous stuff.

But that's neither here nor there. Measure 80 speaks only to pot, and it's certainly a plausible position to say that we should start with decriminalizing pot, see how that goes, and then consider harder drugs.

- It has an annoying preamble that comes close to "finding" that pot is the greatest thing since sliced bread, although much of this comes from obscuring the difference between hemp and pot ("Yields several times more fiber, for paper and textiles, than any other plant"; "Yields cloth and paper of superior strength and durability without the application of pesticides during cultivation and without producing cancer-causing pollutants during processing"; etc.). Maybe these are true facts, but I'd rather not be enshrining them into the books with my vote.

- It creates a commissi0n to regulate the pot trade, which is probably necessary, but limits the election/selection of those commissioners to pot growers and processors, with the exception of two (out of seven total) to be appointed by the Governor. Can you say "agency capture"?

- It requires the state Attorney General's office to defend Oregonians prosecuted for drug crimes -- which apparently means those in federal court(!). This is a wholly absurd proposal, as it vastly overburdens the AG's office, not to mention, creates the possibility of severe legal conflicts-of-interest. What if a person who must be defended in federal court by the state AG also commits non-drug related offenses?

Overreaching. I would have voted for a more, um, measured approach to decriminalize. Measure 80 asks for the moon, so I voted against it.

May 30, 2012

I just came across this passage in Gary T. Marx's book, Under Cover: Police Surveillance in America:

Of course, [video/audio surveillance] can be a double-edged sword should agents forget that video or audio tapes are present (in one case, agents were overheard discussing the sexual activities and attributes of an attractive female assistant U.S. attorney, and, in another, the agent asked an informer to locate a prostitute).

April 13, 2012

I've watched the first two episodes of ABC's "Scandal" now, which is about a D.C. fix-it firm headed by Olivia Pope (played by Kerry Washington). She's a lawyer and DC insider who left the White House on her own, due to romantic entanglement with the still-married President. The show has taken great pains to have Pope emphasize that they are lawyers, but they aren't practicing law. Instead, they help powerful people manage scandals.

In the second episode, the two storylines, which invariably converge, involve a Tenth Circuit judge who's just been nominated to the Supreme Court but has an uncovered dark secret, and a DC madam who's facing prosecution. The local US Attorney badly wants to get his hands on her client list. You can guess who's on the client list. . . .

Anyway, it held my attention -- enough to keep a season pass on my TiVo -- but the attention paid to the accuracy of the legal issues was absurdly bad.

1) At one point, the US Attorney shows up at Pope's office to arrest her client. She keeps him away by asking if he had an arrest warrant, which he conceded he did not. But there's no need in general for an arrest warrant, unless you're arresting someone in his or her own house. See U.S. v. Watson, 423 US 411 (1976); Payton v. New York (1980). This one I can let pass because it's sort of inside baseball for lawyers.

2) In the very beginning of the episode, introducing the Tenth Circuit judge, a TV broadcaster referred to him as "Tenth Circuit Justice Keating." People who sit on the Tenth Circuit are "judges" not "justices." I saw an oral argument once where a lawyer inadvertently referred to a circuit judge as "justice" and the judge made fun of the lawyer for having promoted the judges. Again, this is not that big of a deal, especially since one could always argue that it was the TV broadcaster who messed up (i.e., the writers did this intentionally).

3) At another point, the U.S. Attorney shows up at Pope's office to serve a subpoena on her for the client list. The U.S. Attorney is going to serve a subpoena? Really? That would be like having the CFO of a corporation personally delivering annual reports to shareholders.

4) Speaking of the U.S. Attorney, at yet another point, Pope makes a comment to him that he was angling for an appointment to be Attorney General in the next Democratic administration. This makes ZERO sense. The writers have made clear that the current President is a Republican (which, by the way, raises the question, is Olivia a Republican as well, since she previously worked in his White House?). U.S. Attorneys are appointed positions, and they are pretty much aligned with the President. When Bill Clinton assumed office in January 1993, he immediately fired EVERY U.S. Attorney so that he could appoint his own. So the U.S. Attorney here is assuredly a Republican. Why would he expect to be appointed AG by a Democratic President? That makes no sense.

5) Speaking of making no sense, if Judge Keating is such a perfect jurist -- non-partisan, reflective, scholarly, etc. -- there would be no reason for the Democratic Senators to oppose confirming him. If they did manage to "Bork" him with the prostitution incident (which it turns out isn't even about him, only his wife), the next appointee could be more more ideologically conservative.

6) Um . . . Pope may say they're lawyers but they aren't practicing law, except there's a scene that sure looks like her colleague (Desmond from "Lost") was practicing law in a courtroom. Moreover, she's constantly talking about her clients and claiming lawyerly privileges and things. Yet, she has a massive conflict of interest in representing the D.C. Madam on the one hand (and seeking to protect the list and all that), and blabbing about Keating's presence on the list to the President on the other hand. Moreover, she actually starts working toward helping Keating even though that may be to the detriment of her client!

7) Finally, the resolution of both cases involves going to the clients on the list, who are mostly powerful DC insiders, and letting them know how important it was that the case against the DC madam go away, as well as supporting Judge Keating's nomination. Sure looks like she's blackmailing the various Congressmen. It's true that the state bars are pretty lame about going after lawyer misconduct, but I have a hard time believing she'd remain a lawyer after pulling a stunt like that.

February 25, 2012

As a parent, I'm pleased relieved that Portland Public Schools won't get trashed in the new budget, as had been indicated earlier; this year's funding level has been anemic enough as it is, with most classes at my son's elementary school having 30+ students. It's hard to imagine what a $27.5 million further reduction would have done.

However, a good chunk of the money being used to save the schools from further pain is actually being, well, stolen from crime victims. As the Oregoniannotes, $56 million comes from a tobacco lawsuit. That money is the state's portion of punitive damages, which by state law is supposed to go into the crime victim fund. Kids are important, but so too are crime victims, and the law directs that money to crime victims.

February 15, 2012

I was interviewed earlier today by KGW about the local case involving a Portland couple who, while "role playing" on Valentine's Day evening, ended up attracting the attention of nine(!) police cars. The role playing involved gagging her with duct tape and putting her, naked, into the truck of the car while they drove around. Neighbors and a store manager called 911 . . . .

The couple was initially charged with disorderly conduct, but at the arraignment today, that was reduced to a violation, which they pleaded guilty to.

That seems about right to me. This doesn't seem like the kind of case that should result in any kind of serious prosecution, not even a misdemeanor. It was consensual, and no one was hurt, nor even intended to be hurt. (Of course, the nine police units were unable to respond to other calls during the time they were tied up, so there were collateral effects on others.)

Still, I think it's undeniable that the neighbors and the store manager acted entirely appropriately. I remember a case once where two defendants carjacked a couple, locking the male in the trunk, and repeatedly raping the woman in the backseat. They then drove to a convenience store, and both defendants got out of the car. The woman had the presence of mind to drive away, which was a good thing since she and her boyfriend might well have been killed otherwise. This could have been a really frightening and horrific situation. Calling the police was the right thing to do.